The big American technologies (Facebook, YouTube, TikTok or X) breathed a sigh of relief. After nearly four hours of legal debate, they came to the conclusion that the majority of the members of the US Supreme Court are in their favor and against the Texas and Florida laws that seek to limit their ability to moderate and ban content in the Social Networks.
Some of the nine magistrates, both conservative and liberal, showed skepticism about these regulations, they suggested the capacity of the networks to edit content – even though they pointed out that they do not have protection in the Constitution for politics, everything is fine -, and spoke out against the two states’ rules to prevent content from being deleted.
Pending the ruling, scheduled for June, the result will have a significant impact on the online operations of companies that increasingly play a more relevant role in citizens’ habits, public discussions, elections or democracy.
If they were in favor of states, this would expose users to any aberrations.
But the judges indicated that the rules in question may infringe on the ability of companies to make decisions. Although the justices expressed concern about the power of the social media giants, the high court majority expressed the view that the First Amendment (which protects free speech) prevents state governments from imposing companies that host certain contents.
At the heart of the matter is this first amendment, and whether it protects the editorial discretion of the major social networks or prohibits the censorship of unpopular viewpoints. Statements in these media have the ability to spread extremism and misinformation, but at the same time, withdrawing controversial issues can silence discussions in important debates.
Texas and Florida, two states dominated by the far right, passed laws in 2021 that limited the ability of social networks to regulate user content linked to the suppression of conservative postulates.
The laws were inspired by the move by Twitter (today X) and other companies to suspend former President Donald Trump after the Jan. 6, 2021, coup attack on the Capitol and his advocacy of violence, which which exalted the insurgents.
The two laws, very controversial from the very moment of their conception, meant a severe restriction on companies to regulate or remove individual entries that contravened the rules of the platforms. This process comes when, on the contrary, Congress, the federal executive and many states and even local governments are trying to establish limitations on the use of the networks because of the danger they pose to the mental health of minors.
Some of the justices agreed that states had violated the First Amendment with their laws, since they told platforms they could not moderate their users’ posts, and they drew distinctions between government censorship prohibited by that amendment and moderation actions by private content
The President of the Supreme, John Roberts, raised the question of whether the power to decide who can and who cannot speak on a particular platform belongs to the Government or companies.
“The first amendment restricts what the Government can do, and what the Government is saying here is what you have to do, the people you have to take in, and you have to explain if you don’t do it. This is not the first amendment,” emphasized Roberts.
“I have a problem with laws that are so broad that they repress expression,” said progressive Sonia Sotomayor.
But there have been judges who also did not seem convinced that this First Amendment protects all aspects of digital platforms.
In this sense, the ultra-conservative judge Samuel Alito spoke in favor of the laws and questioned whether when social networks restrict an opinion this should not be described as censorship instead of “content moderation”.
